The Merger Control Review: Brazil

Introduction

i The Brazilian competition authority and the pre-merger control system

The Brazilian Competition Act (Law 12,529/2011) is the main statute governing merger control in Brazil. The Competition Act establishes a pre-merger review system, whereby parties to transactions that trigger a merger notification to the Brazilian Competition Authority (CADE) need to obtain antitrust clearance before closing them. For these transactions, CADE's clearance is a legal condition precedent to closing.

CADE is comprised of the following entities:

  1. the Superintendent-General Office (SG): headed by CADE's Superintendent-General, this is the entity in charge of reviewing all transactions submitted for merger control and clearing those that can be approved without CADE's intervention;
  2. the Administrative Tribunal: composed of six commissioners and a president, this is the decision-making body in charge of ultimately deciding the cases that are challenged by the SG and the appeals presented by interested third parties against the SG's decision to clear transactions; and
  3. the Department of Economic Studies: headed by CADE's Chief Economist, this is a consulting body responsible for rendering non-binding economic opinions and preparing economic studies at the request of the Superintendent-General and the commissioners of the Administrative Tribunal.

ii When pre-merger notification is required

Jurisdictional nexus

Under the Competition Act, CADE has jurisdiction to analyse and decide transactions carried out in Brazil or abroad, provided that they are able to produce effects in the Brazilian territory.2 The approach usually adopted to define whether a transaction carried out abroad has the potential of producing effects in Brazil is to check if the target company (or target business, depending on the structure of the transaction) has a subsidiary in Brazil or if it has revenues originating in Brazil. Under existing case law, even if sales are merely occasional, they could be enough for the transaction to meet the effects criteria.

Transactions that qualify as concentration acts

If a transaction has jurisdictional nexus to Brazil, it is necessary to determine whether the transaction qualifies as a 'concentration act' under the Competition Act, requiring notification if the turnover thresholds are met. The Competition Act provides that the following transactions qualify as concentration acts3 for merger control purposes:

  1. the amalgamation of two or more previously independent companies;
  2. the direct or indirect acquisition of control or minority stakes in a company or group of companies, including the purchase or exchange of shares, quotas, bonds or securities convertible into shares, or tangible or intangible assets, by means of contractual instruments or any other mean or form;4
  3. the merger of one company into another company; and
  4. the execution of an associative agreement, consortium or joint venture among two or more companies.

In Regulation No. 17/2016, CADE has defined the following criteria to qualify agreements as 'associative agreements' that would trigger a notification requirement under the Competition Act:

  1. agreements with a duration of two years or more, including possible renovations;
  2. the establishment of a joint enterprise between the parties with the purpose of engaging in an economic activity;
  3. the sharing of risk and profits between the parties; and
  4. where the parties compete in the relevant market affected by the agreement.

The Competition Act provides that associative agreements, consortia or joint ventures are not considered by the Competition Act as concentration acts requiring notification if their purpose is to participate in direct or indirect public administration tenders or in contracts arising from them.

Turnover thresholds

If a transaction has jurisdictional nexus to Brazil and qualifies as a concentration act, it will trigger a merger control requirement in Brazil if its parties and respective economic groups meet the dual turnover thresholds provided by the Competition Act:

  1. one company or group of companies registered gross sales revenues or total volume of business5 equal to or greater than 750 million reais, in Brazil, in the year preceding the transaction; and
  2. at least another company or group of companies involved in the transaction registered gross sales revenues or total volume of business equal to or higher than 75 million reais, in Brazil, in the year preceding the transaction.

In this assessment, it is necessary to take into account not only the revenues registered by the companies directly involved in the transaction, but also the revenues registered by all companies that could be considered part of their respective economic groups, as per the definition of economic group provided by CADE's regulations.6

Under the Competition Act, CADE may request the submission of any transactions that do not meet the thresholds for merger control review within one year of closing. This risk is more significant in transactions that result in significant horizontal overlaps or vertical integration. CADE has used this power in exceptional circumstances only.

iii New statutes, regulations and guidelines

2020 was an important year for the agency, which actively participated in the Organisation for Economic Co-operation and Development meetings, and was also involved in several working groups, debates and discussions with competition authorities from BRICS nations7 and institutions such as the International Competition Network and the United Nations Conference on Trade and Development.

In April 2020, the Brazilian National Congress approved a bill of law exempting cooperation agreements (such as joint ventures, associative agreements and consortiums between competitors) from mandatory notification to CADE in cases where merger control requirements may provide an obstacle for collaboration that may be necessary for preventing and combating the coronavirus pandemic and its effects on the economy.

In July 2020, CADE published a provisional informative note on the collaboration among companies involved in the covid-19 crisis. The document presents guidelines on the parameters recommended in the preparation of strategies to combat the pandemic and includes extensive detail of the procedures available for economic agents to obtain CADE's consent for their proposed strategies.

The general guidelines for collaboration among companies involve considerations regarding scope, duration, territorial extension, governance, transparency and good faith.

Year in review

Due to the pandemic, the majority of CADE's officers continued to work from home, holding meetings via video and audio conferencing. The Administrative Tribunal holds live public virtual judgment sessions enabling it to continue to decide on cases, and some commissioners are working on site.

In 2020, 454 concentration acts were submitted to CADE for approval. The majority (423) were unconditionally approved without any restrictions, and only seven were approved subject to remedies being adopted. The other 24 transactions were either withdrawn by the parties or declined to be reviewed by CADE for not triggering a merger filing requirement under the Competition Act.8 It is important to highlight the increase in the number of mergers that were judged and approved by CADE in 2020. In relation to 2018 and 2019, the number of judged cases has increased exponentially. In 2020, CADE ruled on 50 more cases than in 2018 and 21 more than in 2019.

Regarding the most relevant cases, in June 2020, the SG approved, without restrictions, the half a billion reais acquisition of Nakata by Randon Group.9 The operation relied on extensive and in-depth analysis of the auto parts market. Despite horizontal overlaps, the SG concluded that there were no competition concerns since the possibility of exercise of market power by the buyer was not proved. According to the SG, the concerns regarding the possibility of exercise of portfolio power by the applicants, in the terms expressed by an interested third party (that had alleged uniqueness of the parties' portfolio, which would lead to practices such as tie-in sales, conditional rebates, discrimination of distributors and adoption of predatory pricing with cross-subsidisation of other products in the parties' portfolio) were not confirmed by the market test.

In June 2020, the Administrative Tribunal judged a transaction concerning the conclusion of two contracts of network media sharing for the deployment and provision of services under 2G, 3G and 4G technologies to end consumers by Telefônica and Tim.10 Despite an appeal by a competitor, the Tribunal concluded that the proposed network sharing would not create incentives for discriminatory practices, and approved the operation without restrictions.

In November 2020, the Administrative Tribunal approved the transaction between Liquigás and Copagaz, Itaúsa, NGB and Fogás with remedies.11 To summarise, the analysis of the concentration act points to markets with concerning levels of concentration but that are susceptible to structural remedies. The parties submitted a proposal containing additional structural measures to those presented when the operation was notified, to eliminate the remaining competitive risks.

In December 2020, the Administrative Tribunal approved the transaction between Fiat Chrysler Automobiles and Peugeot SA without remedies.12 It is important to note that Commissioner Lenisa Prado requested a second review of this concentration act after the approval without restrictions by the SG. This second request of review is a tool used when a case that is already decided by the Superintendent is brought by one of the Tribunal commissioners for revision.

Since the beginning of 2020, the Commissioner has suggested recalling three mergers:

  1. the acquisition of Kepler by an investment fund;13
  2. a joint venture between Delta Air Lines and Latam Airline Group;14 and
  3. the above-mentioned merger between Fiat Chrysler and Peugeot.

Only the second review of Delta/Latam was approved by the plenary.

As well as Commissioner Prado, Commissioners Luis Braido and Luiz Hoffmann also proposed to review some cases in 2020; namely, Seara's purchase of Bunge15 and Bunge's purchase of Imcopa,16 respectively. Both were approved by the Administrative Tribunal. Traditionally, this procedure of reviewing cases already analysed by the SG is not standard practice, but there has been a clear increase in its use by the new commissioners, causing additional delays to the closing of the transactions reviewed. Some commissioners and market commentators have complained about how often this tool is being used because it can delay the closing of transactions in a harmful way for the associated parties.

A different tool that was used often by commissioners in 2020 is the request for a review of cases that were examined by the Administrative Tribunal. Commissioners may ask to review records that are in the charge of another commissioner, which can delay judgments by potentially incurring longer voting periods (either dissenting or confirming the views of the original commissioner).

In 2020, there were 24 requests for views, compared to 12 in 2019 and 17 in 2018.17 According to Commissioner Luis Braido, the request for review by other commissioners 'delays our decision and weakens the collegiate body'.

There is no consensus on what might be causing the higher number of review requests within the Tribunal's current composition, but it seems clear that there is less alignment between the Tribunal and the SG, as well as among the members of the Tribunal themselves.

Another important transaction analysed in 2020 relates to the partnership between Facebook and Cielo to allow payments via WhatsApp. Through the partnership, announced on 15 June 2020, Facebook and Cielo intended to offer commercial establishments and consumers the service of receiving payments via WhatsApp.18 The SG learned about the transaction and launched an investigation into the partnership on the grounds of potential risk to competition, which caused CADE to suspend the transaction due to the possibility of exclusivity between the companies, and the fact that it would combine WhatsApp's user base with Cielo's market power. The companies appealed to CADE, requesting a reconsideration of the decision and the suspension order was revoked. The transaction did not require notification to CADE for approval.

2021 was marked by the disapproval of the acquisition of Innova by Videolar due to non-compliance with the concentration control agreement signed with CADE in 2014.19 According to CADE, the petrochemical companies had not kept their commitment of maintaining polystyrene production volumes at the levels established in the agreement and had also failed to prove consumer benefits arising from the transaction. To Commissioner Sergio Ravagnani's understanding, the transaction 'generated a duopoly in a highly concentrated market, with a low probability of entry and absence of incentives to rivalry'. The understanding was agreed by the Tribunal, which decided to reject the deal. The companies were ordered to separate the assets that made up the rejected transaction. The plenary also imposed a 9 million reais fine for non-compliance with the agreement.

In May 2021, the Administrative Tribunal approved the transaction between Danfoss and Eaton Corporation with remedies.20 The deal's approval was conditioned on entering into an agreement to solve competition concerns arising from the transaction. As notified to CADE, the transaction would have the potential to generate the exercise of market power by Danfoss. In addition, the investigation has shown that there were insufficient conditions for competition in the analysed markets in a post-merger scenario. For all of these reasons, the companies negotiated an agreement with CADE to ensure that effective competition is maintained in these markets.

In addition to Brazil, the operation between Eaton and Danfoss was also notified in the United States, the European Union, Ukraine, Egypt, China, South Korea, Mexico, Australia and Turkey. According to the Reporting Commissioner, 'the remedies presented throughout this vote are coherent and in harmony with the positions of the foreign authorities, besides being compatible with specific concerns related to the Brazilian market'.

The merger control regime

i Timing of submission and gun-jumping

CADE's regulations provide that transactions should preferably be notified after the signing of the formal agreement that binds the parties and, in all cases, before any act related to the transaction is implemented.21 There is no deadline for filing notifications, but the parties cannot close a transaction before CADE's final approval.

CADE's regulations also provide that transactions involving tender offers for the acquisition of shares that require notification may be submitted for approval from the date of their announcement, and do not depend on CADE's approval for completion. Nevertheless, the acquirer cannot exercise the political rights related to the interest acquired as a result of the tender offer until final approval by CADE.22 The same rules apply to hostile transactions involving tender offers, which must be submitted for approval before closing.

If the parties take any action considered a step or a form of implementation of the transaction before CADE's approval (gun-jumping), they may be subject to a fine ranging from 60,000 reais to 60 million reais, and all acts undertaken for the implementation or closing of the transaction may be declared void. In addition, CADE may initiate an administrative proceeding to investigate possible pre-merger coordination or any other anticompetitive behaviour possibly derived from the transaction.

CADE's regulations require that the parties maintain their unchanged physical structures and competitive conditions until CADE renders a final decision, and states that no transfer of assets, no type of influence of one party over another and no exchange of competitively sensitive information that is not strictly necessary for the execution of the agreement that binds the parties will be allowed.23

ii Merger notification forms and review procedures

CADE's regulations provide for two types of notification forms and review procedures: a long form for cases not eligible for the fast-track procedure and a short form for cases eligible for the fast-track procedure.24

The short form requires the following information and documents:

  1. a brief description of the transaction;
  2. information on the notifying parties and their economic groups, including the gross revenues obtained by the parties with respect to each of their economic activities;
  3. information regarding the transaction;
  4. documentation encompassing all agreements related to the transaction and a list of all other documents that have been produced as a result of the transaction;
  5. a definition of and information on the relevant markets affected by the transaction; and
  6. information on the supply structure of the market in cases that may result in horizontal overlaps or vertical integration.

The long form requires more detailed and in-depth information in addition to the information required by the short form for markets with horizontal overlaps in which the parties will have combined market shares of 20 per cent or more, as well as for vertically related markets in which the parties will hold a market share of 30 per cent or more, such as:

  1. information on the relevant market, including distribution channels, conditions of entry and rivalry in the relevant markets, intellectual property, infrastructure, brand loyalty, estimate of market production and pricing strategy;
  2. information on demand structure;
  3. analysis of monopsony power;
  4. information on all overlapping products and identification and contact details for competitors, customers and suppliers in all overlapping product areas;
  5. information on customer preferences; and
  6. analysis of coordinated power.

The long form also requires the provision of internal company documents, such as market assessment studies, minutes of relevant body and committee meetings, ordinary course of business strategy and marketing reports and a business plan. The parties may request confidential treatment for confidential documents and information, provided that they are not available to the public by other means, such as documents:

  1. relating to the transaction;
  2. containing details of the companies' economic and financial situation and revenues;
  3. containing company secrets;
  4. encompassing production processes and industrial secrets, particularly in terms of the manufacturing processes and formulas for the manufacture of products;
  5. containing information on customers and suppliers; and
  6. relating to the date and value of the transaction and the method of payment.

CADE's horizontal mergers guidelines provide guidance to CADE's officers and companies on the best competition practices and the review procedures that may be adopted by CADE in the assessment of merger transactions, particularly horizontal mergers. These guidelines consolidate CADE's best practices and case law on merger review and contain details on the following: analysis; information sources; relevant market; concentration levels; unilateral effects; buying power; coordinated effects; efficiency gains; complementary and alternative methods; merger-related judicial recovery proceedings (failing firm situations); and non-competition provisions.

iii Statutory time periods

The Competition Act sets out statutory time periods for the review of transactions and a review period of 240 days from the date of notification for the issuance of a final administrative decision. This 240-day term may be extended by up to 90 days if the transactions require deeper analysis (maximum review period of up to 330 days). These periods of time cannot be suspended by the competition authorities or by the parties.25

CADE's regulations establish that if it does not render a final decision within the maximum review period set in the Competition Act, the transaction will be automatically approved.26 The timing of a decision will vary depending on whether a transaction is considered simple, non-simple or complex. Under existing regulations, certain transactions have limited potential to harm or restrict competition and, therefore, may be considered simple and may be eligible for a fast-track or summary procedure.

Transactions that are considered simple (i.e., in which the parties have combined market shares below 20 per cent in overlapping markets and market shares below 30 per cent in vertically related markets) are eligible for fast track, whereas transactions that are not considered simple require a longer notification form and will follow the ordinary procedure. The decision on whether a transaction will follow the fast-track procedure will be made on a discretionary basis by CADE. Certain non-simple transactions may be challenged by the SG and, if so, they will be ultimately decided by the Administrative Tribunal.27

Although the regulations do not provide for intermediary periods for decisions on simple or less complex cases, according to publicly available information, CADE usually approves fast-track cases within 30 days of the date of submission. In non-simple cases, the average time of analysis varies between 60 and 120 days (and may ultimately reach 330 days in very complex cases).

The Competition Act and applicable regulations establish a time limit of 15 days in which third parties to transactions may request to be admitted as interested or intervenient parties in a merger control case. These third parties are required to demonstrate that they have legitimate interests that may be affected by the transaction under analysis.

Interested third parties admitted to the case can appeal an SG decision approving a transaction without restrictions to the Administrative Tribunal. The Administrative Tribunal may also present an opposition to the SG's decision and request the transaction go to second review.

The time limit for appeals or request for a second review by the Administrative Tribunal is 15 days after publication of the SG's approval decision. After this period elapses without any appeals or requests by the Tribunal, the approval decision becomes final and appealable.28

iv Provisional authorisation to close

The Competition Act states that CADE may provisionally authorise the closing of transactions before a final decision is rendered. Parties may seek a provisional authorisation to close a transaction when: there is no danger of irreparable harm to competition in the market; the measures for which authorisation is requested are fully reversible; and the parties are able to show imminent risk of substantial and irreversible financial losses for the target company (if provisional authorisation is not granted).

v Possible decisions and merger control agreements

When assessing a transaction submitted for approval, the SG may render a unilateral decision approving it without restrictions or challenge it before the Administrative Tribunal if it considers that the transaction cannot be approved or could be approved with restrictions (which may encompass structural or behavioural remedies).

Therefore, if the SG decides that the transaction cannot be approved unconditionally, it will forward the case to the Administrative Tribunal with its recommendations for a final decision. A transaction will also be ultimately decided by the Tribunal whenever it disagrees with the SG's decision to clear a transaction or when an interested third party admitted to the case files an appeal against the SG's decision to approve a transaction. The Administrative Tribunal, in its turn, may fully approve or reject the transaction or approve it with remedies.

According to the Competition Act, CADE may impose remedies that include:

  1. the sale of assets or a group of assets that constitute a business activity;
  2. the spin-off of a company;
  3. the transfer of corporate control;
  4. accounting or legal segregation of a company's activities;
  5. compulsory licensing of intellectual property rights; or
  6. any other act or measure necessary to eliminate the possible anticompetitive effects in the affected markets.

In 2018, CADE published guidelines on remedies that consolidate the best practices and procedures adopted in the design, application and monitoring of remedies imposed by CADE or negotiated with the parties.

The parties to the transaction may negotiate a merger control agreement with CADE from the moment of the filing until 30 days after the SG has challenged the transaction before the Administrative Tribunal.29 Merger control agreements are negotiated with the SG or the Reporting Commissioner at the Tribunal, but they must be ultimately approved by the Tribunal.

Other strategic considerations

Parties to transactions that require a merger control notification to CADE should be careful in taking any steps that could be viewed as gun-jumping or pre-merger coordination, as they may be subject to fines and to investigations for anticompetitive conduct. Considering that CADE may render a decision imposing remedies on transactions or prohibiting them, parties should identify antitrust risks from the outset of the negotiations and consider using contractual covenants that adequately allocate these risks among them.

CADE is open to pre-filing contacts in cases that are not eligible for the fast-track procedure, which may be very useful to validate how it would view the affected relevant markets and the information that would be necessary for the competition assessment of the transaction. The pre-filing procedures can also be useful to limit the scope of the information required in the long notification form, particularly in cases that, although not eligible for the fast-track procedure, do not raise significant competition concerns and would not require an in-depth review. Pre-filing contacts are strongly advisable in non-fast-track cases and may even expedite the review process by allowing the parties to submit a notification more aligned with CADE's expectations.

CADE may communicate and exchange non-confidential information with competition authorities from other jurisdictions. Therefore, it is important to ensure consistency in multi-jurisdictional merger filings.

CADE usually double checks the information presented by the parties with publicly available information (i.e., companies' websites and public reports and statements) and, in more complex cases, it may also undertake a market test to validate the information provided. The submission of false or misleading information to CADE may subject the parties to heavy fines, undermine the parties' credibility and derail a merger review process.

In exceptional situations of financial distress and risk of insolvency of the target company, the parties may request that CADE provide a provisional authorisation to close or, at least, to adopt certain measures to secure the targets' continued operation. Nevertheless, CADE may not be comfortable with granting this authorisation in transactions that may raise competition concerns and when the requested measures may not be reversible.

In transactions that may raise significant anticompetitive concerns in Brazil, negotiated solutions may present a less time-consuming path to obtain antitrust clearance and allow approval based on more reasonable and tailor-made remedies. The negotiation of merger control agreements in complex cases may allow the parties to design a solution together with CADE that may be enough to neutralise CADE's concerns and, at the same time, avoid the imposition of excessive remedies and burdens. Without the cooperation of the parties in designing a more suitable solution, CADE may adopt a more conservative approach and impose stricter remedies than necessary or even reject a transaction.

Outlook and conclusions

Despite the unprecedented difficulties presented by the coronavirus pandemic, CADE has proved its ability to continue to review and decide merger control cases during these times of crisis, with the use of technology, video and audio-conferencing facilities and virtual judgment sessions to decide cases. CADE has also demonstrated that it is amenable to the challenges presented to companies by the pandemic and that it is open to adopting more flexible approaches based on reasonable justifications, as demonstrated in the approval of a collaboration agreement between big players in the food and beverage sectors to mitigate logistics difficulties in the distribution of products within Brazil during the pandemic.30

CADE's composition will undergo significant changes in 2021, with the terms of several high-profile appointments coming to an end: President Alexandre Barreto de Souza in June; Commissioner Mauricio Bandeira Maia in July; and the general superintendent, Alexandre Cordeiro Macedo, and chief prosecutor, Walter de Agra Junior, in October. In addition to staff renewal, CADE will have to deal with the deepening economic crisis brought on by covid-19. Depending on the timing of the economic recovery, the agency may receive an unprecedented volume of operations, as it did in 2020.

Despite the increase in the number of second requests of review by the new commissioners, CADE continues to prove its ability to efficiently examine transactions under a pre-merger review system and to continuously improve the Brazilian merger control system, as demonstrated by the new regulations and procedural matters enacted in 2020 and in the first half of 2021.

CADE's merger review practices have grown more sophisticated in the past decade as a result of its accumulated experience, the increase of merger challenges by third parties and closer cooperation and exchange of best practices with authorities from other jurisdictions. Overall, the balance of 2020 is positive for the agency, reinforcing its prominent role in a continuous search for improvement.

Footnotes

1 Mariana Villela and Leonardo Maniglia Duarte are partners, and Ana Valéria Fernandes is an associate, at Veirano Advogados.

2 Article 2 of the Competition Act sets out that, 'notwithstanding conventions and treaties to which Brazil is a signatory, this act shall apply to all practices carried out wholly or partially in Brazilian territory, or when such acts produce or are capable of producing effects in Brazilian territory'.

3 Article 90 of the Competition Act.

4 CADE Regulation No. 02/2012 (Articles 9 to 11) sets out de minimis rules to exempt from notification certain transactions involving the acquisition of a minority interest of capital stock or voting shares, by not considering them as concentration acts even if the notification thresholds are met.

5 CADE has not yet provided any indication of how it will interpret the meaning of 'volume of business' and how it should be calculated by applicants. In practice, CADE has been making reference solely to the revenue threshold and not to volume of business.

6 CADE Regulation No. 02/2012 (Article 4) states that the following entities will be considered as part of the same economic group for purposes of calculating the turnover thresholds: (1) companies that are under common control; and (2) companies in which any of the companies described in (1) have a direct or indirect participation of 20 per cent or more of the capital stock or voting shares. In the case of investment funds, the following entities will be considered part of the same economic group: (1) quota holders that hold a direct or indirect interest of 50 per cent or more of the quotas in the fund involved in the transaction (and their respective economic groups); and (2) companies controlled by the fund involved in the transaction and in which such fund holds a direct or indirect interest of 20 per cent or more of the capital stock or voting shares.

7 Brazil, Russia, India, China and South Africa.

8 CADE Regulation No. 02/2012.

9 Concentration Act No. 08700.000741/2020-67.

10 Concentration Act No. 08700.006163/2019-39.

11 Concentration Act No. 08700.000827/2020-90.

12 Concentration Act No. 08700.002193/2020-18.

13 Concentration Act No. 08700.000180/2020-04.

14 Concentration Act No. 08700.003258/2020-34.

15 Concentration Act No. 08700.001134/2020-14.

16 Concentration Act No. 08700.002605/2020-10.

17 Guilherme Pimenta, 'Indicados de Bolsonaro deixam Cade mais imprevisível', JOTA Info, 11 December 2020, available at http://www.jota.info/tributoseempresas/concorrencia/indicados-de-bolsonaro-deixam-cade-mais-imprevisivel-11122020 (accessed on 16 May 2021).

18 Ascertainment of Concentration Act No. 08700.002871/2020-34.

19 Concentration Act No. 08700.009924/2013-19.

20 Concentration Act No. 08700.003307/2020-39.

21 Article 147 of CADE Regulation No. 20/2017.

22 id., at Article 148. Under certain circumstances, CADE may authorise the exercise of these political rights if it is necessary to preserve the full value of the investment.

23 id., at Article 147, Paragraph 2.

24 CADE Regulation No. 2/2012.

25 Article 88 of the Competition Act.

26 Article 173 of CADE Regulation No. 20/2017.

27 CADE's decisions are final at the administrative level, but the parties may challenge them before the Federal Courts of Law in Brazil.

28 Article 172 of CADE Regulation No. 20/2017.

29 id. ,at Article 165.

30 CADE, 'Cade divulga nota informativa sobre colaboração entre concorrentes para enfrentamento da crise de Covid-19', available at http://antigo.cade.gov.br/noticias/cade-divulga-nota-informativa-sobre-colaboracao-entre-concorrentes-para-enfrentamento-da-crise-de-covid-19 (accessed on 31 May 2021).

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